Wed, 07 Apr 2010

This afternoon in the Lords, Baroness Neville-Jones said 'Systematic
reform is needed and a new approach focused on the
guilty and on those who pose most risk. This is a fundamental root and
branch change that we will not achieve today but which must be achieved
by a new Government. For now, we take the view that it is important
that we have in law acceptance of the proposition that the indefinite
retention of innocent people’s DNA is unacceptable and
illegal.'

Baroness Neville-Jones made another pledge: 'A Conservative
Government if in office
will do the following: they will legislate in the first Session to make
sure that the DNA database includes permanent records only of people
who have been convicted of an offence and, for a more limited period,
those charged with sexual or violent offences. Secondly, we will focus
efforts on collecting the DNA of all existing prisoners, those on
probation, on licence or in prison or under the supervision of the
criminal justice system, which the Government have failed to do.
Thirdly, we will introduce new guidelines so that those wrongly accused
of minor crimes and who have volunteered their sample have an automatic
right to have their DNA removed from the database—one thing
that this House most strongly objects to.'

Here's the full text of this short debate:

Amendment 2

Moved by Baroness Hamwee

2: Before Clause 14, insert the following new Clause—

“Retention, destruction and use of fingerprints
and samples

For section 64 of the Police and Criminal Evidence Act 1984
(destruction of fingerprints and samples) there is
substituted—

“64 Destruction of fingerprints and samples

(1) Unless provided otherwise in this section, where
fingerprints, impressions of footwear or samples are taken from a
person in connection with the investigation of an offence, the
fingerprints, impressions of footwear or samples or any DNA profile may
not be retained after they have fulfilled the purposes for which they
were taken and shall not be used by any person except for purposes
related to the prevention or detection of crime, the investigation of
an offence, the conduct of a prosecution or the identification of a
deceased person or of the person from whom a body part came.

(2) In subsection (1) above—

(a) the reference to crime includes a reference to any
conduct which—

(i) constitutes one or more criminal offence (whether under
the law of a part of the United Kingdom or of a country or territory
outside the United Kingdom); or

(ii) is, or corresponds to, any conduct which, if it took
place in any one part of the United Kingdom, would constitute one or
more criminal offences; and

(b) the references to an investigation and to a prosecution
include references, respectively, to any investigation outside the
United Kingdom of any crime or suspected crime and to a prosecution
brought in respect of any crime in a country or territory outside the
United Kingdom.

(3) A DNA sample must be destroyed—

(a) as soon as a DNA profile has been derived from the sample, or

(b) if sooner, before the end of the period of six months
beginning with the date on which the sample was taken.

(4) Any other sample to which this section applies must be
destroyed before the end of the period of six months beginning with the
date on which it was taken.

(5) Fingerprints, impressions of footwear and DNA profiles
are not required to be destroyed if they were taken from a person
convicted of a recordable offence.

(6) Where any fingerprint, impression of footwear or sample
has been taken from a person who is arrested for or charged with a
sexual offence or violent offence, the fingerprint, impression of
footwear or DNA profile shall not be destroyed—

(a) in the case of fingerprints or impressions of footwear,
before the end of the period of three years beginning with the date on
which the fingerprints or impression were taken, such date being the
“initial retention date”; or

(b) in the case of a DNA profile, before the end of the
period of three years beginning with the date on which the DNA sample
from which the DNA profile was derived was taken, such date being the
“initial DNA retention date”; or

(c) if an application is made to the court under subsection
(7), until such later date as may be provided by subsection (8) or (10)
below.

Provided always that if the person is convicted of a
recordable offence, subsection (5) shall apply.

(7) On application made by the responsible chief officer of
police within the period of three months before the initial retention
date or the initial DNA retention date as the case may be, the Crown
Court, if satisfied that there are reasonable grounds for doing so, may
make an order amending, or further amending, the date of destruction of
the relevant fingerprint, impression of footwear or DNA profile.

(8) An order under subsection (7) shall not specify a date
more than two years later than—

(a) the initial retention date in relation to fingerprints
or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA
profile.

(9) Any decision of the Crown Court may be appealed to the
Court of Appeal within 21 days of such decision.

(10) A fingerprint, an impression of footwear or a DNA
profile shall not be destroyed where—

(a) an application under subsection (7) above has been made
but has not been determined;

(b) the period within which an appeal may be brought under
subsection (9) above against a decision to refuse an application has
not elapsed; or

(c) such an appeal has been brought but has not been
withdrawn or finally determined.

(11) Where—

(a) the period within which an appeal referred to in
subsection (9) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally
determined without any extension of the time period referred to in
subsection (8);

the fingerprint, impression of footwear or DNA profile shall
be destroyed as soon as possible thereafter.

(12) Subject to subsection (13) below, where a person is
entitled to the destruction of any fingerprint, impression of footwear
or sample taken from him or DNA profile, neither the fingerprint, nor
the impression of footwear, nor the sample, nor any information derived
from the sample, nor any DNA profile shall be used in evidence against
the person who is or would be entitled to the destruction of that
fingerprint, impression of footwear or sample.

(13) Where a person from whom a fingerprint, impression of
footwear or sample has been taken consents in writing to its retention,
in the case of a fingerprint or impression of footwear or the retention
of any DNA profile—

(a) that fingerprint, impression or DNA profile as the case
may be need not be destroyed;

(b) subsection (12) above shall not restrict its use;
provided that—

(i) no DNA profile may be retained on any child under the
age of 10 years; and

(ii) consent given for the purposes of this subsection shall
be capable of being withdrawn by such person upon making written
application to the responsible chief officer of police or person
authorised by the Secretary of State for such purpose whereupon such
fingerprint, impression of footwear or DNA profile shall be destroyed
as soon as possible following receipt of such written application.

(14) For the purposes of subsection (13), it shall be
immaterial whether the consent is given at, before or after the time
when the entitlement to the destruction of the fingerprint, impression
of footwear or DNA profile arises.

(15) In this section—

“DNA profile” means any information
derived from a DNA sample;

“DNA sample” means any material that has
come from a human body and consists of or includes human cells;

“the responsible chief officer of
police” means the chief officer of police for the police
area—

(a) in which the samples, fingerprints or impressions of
footwear were taken; or

(b) in the case of a DNA profile, in which the sample from
which the DNA profile was derived was taken;

a “sexual offence” or “violent
offence” shall mean such offences of a violent or sexual
nature as shall be set out in any order made by the Secretary of State
with reference to this section.

(16) Nothing in this section affects any power conferred by
paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20
of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police
information to the Secretary of State for use for immigration purposes).

(17) An order under this section must be made by statutory
instrument.

(18) A statutory instrument containing an order under
subsection (17) shall not be made unless a draft of the instrument has
been laid before and approved by a resolution of each House of
Parliament.””

Baroness Hamwee: I shall speak also to
the amendments grouped with this one and to our objections to Clauses
14 to 23 standing part.

With this amendment we come to the subject of DNA. In the
first debate in which I spoke on the Home Affairs portfolio, I said
that for Liberal Democrats, civil liberties are in our DNA. The
Minister protested that they were in his too, and I do not for a moment
doubt it. Unfortunately, although they might be in his DNA, they are
not in this Bill.

The current law on DNA retention has been held by the Grand
Chamber of the European Court of Human Rights to breach the European
Convention on Human Rights. The “blanket and indiscriminate
nature”, to use its words, of the law under which the police
may retain indefinitely the DNA of the person arrested, whether or not
convicted or even charged, failed to,

“strike a fair balance between the competing
public and private interests”.

Following the case of S and Marper the Government have got
to do something. However, what they are choosing to do in this Bill is
only a marginal improvement. Those arrested but not charged or
convicted will still have their DNA profile kept on the national DNA
database for at least six years. In our view, the retention of the DNA
profile of an innocent person for six years is six years too long.

I spoke at Second Reading of the importance of the
presumption of innocence over guilt holding in our technologically
advanced world; of arrest not being confused with conviction; and of
the stigma attached to DNA retention. Evidence of that was debated not
only in this House but in the Commons and given to the Home Affairs
Select Committee, which has recently published a report on the matter.

The Home Office has relied on research which itself relies
on the flawed premise that arrest is an indicator of the risk of
offending—arrest not conviction—and it measures the
risk of offending by the risk of rearrest. So it appears that two
arrests are evidence of criminality. I could go on but I shall not do
so because I am aware of how much business the House has to get
through—I was going to say tonight but perhaps I should say
before we start business again tomorrow.

Members of the Commons discussed the matter at
length—they went on because they had more
opportunity—and the Conservative Member Mr Brokenshire said
that,

“the measure fails to take account of one of the
fundamental principles of our liberal democracy: the presumption of
innocence before the law unless one has been proven guilty. That
principle should be an important guiding factor in framing the debate
on retention, rather than being an inconvenient anomaly, as the
Government appear to view it, given their historical approach to DNA
retention”.—[Official Report,
Commons, 8/3/10; col. 41.]

He said that when introducing an amendment that is exactly
the same as the amendment we have tabled. I do not often flatter the
Conservatives—either sincerely or insincerely—but
they will recognise the imitation on this occasion.

I made it clear at Second Reading that the amendment is a
compromise. The Scottish model, which this is—or, one might
say, the model of my noble friend Lord Wallace of
Tankerness—self-evidently is more proportionate than the
provisions in the Bill. Innocent people are treated as innocent but
there is an allowance for a three-year retention of data in the case of
those suspected of sexual or violent offences. I have flattered the
Conservatives and now I shall quote the noble Baroness, Lady
Neville-Jones. At Second Reading—which seems a long while
ago—she said:

“In the absence of a much better put together case
than the assertions that we heard this afternoon, the Scottish system
has shown that it is capable of delivering. It is the reason why we on
these Benches prefer that model. We believe that the state should not
retain the DNA profiles of those not convicted of an offence, except in
circumstances where the charges relate to a crime of violence or of a
sexual nature”.—[Official Report,
29/3/10; col. 1234.]

That is quite right.

In winding up for the Conservatives, the noble Lord, Lord
Skelmersdale, said:

“Suffice it to note that both the Joint Committee
on Human Rights and your Lordships’ Constitutional Committee
doubt whether Clauses 14 to 21 really are
Human-Rights-Act-proof”.—[Official Report,
29/3/10; col. 1268.]

He said that predicting what would happen with the Bill was
above his pay grade, although it was obvious from his speech that he
expected it not to see Royal Assent. I therefore trust that the noble
Baroness will not now support the Government in view of her own and her
party’s clear position previously. I await to hear her views
with interest, but if she tells the House that this is a matter for
review and if her party finds itself in a position to conduct a review
it will do so, why not on the basis of the Scottish model rather than
the regime which her party and she have condemned and which may well
be—following high legal costs and much emotional
agony—condemned by the European court? I beg to move.

The Earl of Onslow: My Lords, I am a
member of the Joint Select Committee on Human Rights; I shall leave it
the day after tomorrow, or whenever Parliament rises, because I have
done my four years. The committee looked at this issue and did not
think it would pass the Human Rights Act hurdle. When you take a horse
racing, it is silly to put up an overscoped fence so that it falls flat
on its face, and then put up another fence which is too big for it and,
bang, down it comes again. That is an exact parallel to what the
Government are doing in this case.

DNA is one of the greatest aids we have had in modern times
to assist in solving crimes, particularly unpleasant and nasty
ones—I totally concede that. However, we must never lose
sight of the liberties of the subject. That means that the DNA
collected from innocent people who volunteer to give it in a murder
inquiry should automatically be destroyed; the DNA of people who have
been arrested but against whom charges have not been brought should be
destroyed; and the DNA of people who are charged and acquitted should
also be destroyed. I do not know whether the amendment goes far enough
or whether it is comprehensible—I looked at it, tried to read
it but could not understand it—but I was efficiently briefed
by Liberty. I believe that that sums up Liberty’s position,
as well as I can remember it, and also the position of the Joint
Committee on Human Rights. We were unanimous on this issue, as we are
on quite a few matters, and there was no question of any split or vote
on it.

When a case is lost in the European Supreme Court, it is
stupid of the Government, instead of accepting that the case is lost,
to produce legislation which will lead to them losing again. I fear
that the provisions in the Bill will produce another fall at the second
hurdle. The amendment should at least be taken seriously, if not
accepted.

Baroness Kennedy of The Shaws: My Lords,
I, too, support the amendment. I can always be relied upon to be
consistent on this issue. From the point where the law was changed to
allow the retention of the DNA of those who were arrested but
subsequently not charged, I have opposed that retention. People feel
quite seriously that there is a stigma attached to the retention of
DNA. If they have been arrested and no subsequent charge follows, its
retention on the database makes them feel that a terrible wrong is
being done to them by the state. That might be different if everyone
were on the database from the word go, but it is not the situation that
we are currently facing.

I was saddened that the Government did not accept, in light
of the European Court’s decision, that there were breaches of
human rights principles. While I was not particularly accepting of the
Scottish formula, I felt that it was a compromise that the Government
should have willingly accepted. It is a great regret to me that they
have not done so. I, too, shall support the amendment. It seems to me
that a case will go up through the courts, and it is very likely that
it will be found that the Government’s new formulation will,
like the old one, offend against human rights standards. I would have
thought that this was a moment to say, “Enough.
Let’s reflect on this over the next period and see what a new
Parliament, in whatever form it is, might feel about all these matters
in a fresh dawn”.

Lord Judd: My Lords, having spoken on
this subject at Second Reading, I feel compelled to say that I have a
good deal of good will towards the drift of the amendment put forward
by the Liberals. I find it very sad that, at the end of this
Parliament, we should be endorsing the erosion of one of the
fundamental principles of justice in this country as I have understood
it, which is the presumption of innocence.

There will be those for whom there is no question of their
presumption of innocence; there will be some who have a qualified
presumption of innocence because their name is on a register or record
even though they have not been found guilty of any crime. This is not
an acceptable situation. I also find it very sad that we should at this
stage be dragging our feet not only on what our own Joint Committee on
Human Rights and Select Committee on the Constitution have said but on
what the European Court has been so firm about.

The issues of proportionality, too, are central to our whole
tradition of justice, and this is what has raised anxiety. I would have
liked to feel at this stage that we were in the vanguard of defending
these principles. I am really concerned about the erosion of everything
that we have understood to be the cornerstones of our system of justice.

I am sorry to have to say these things this evening, but,
having spoken at Second Reading, I think that it would be pretty feeble
just to walk away and not put on record my feelings about the
amendment. I shall be very sad if my noble friend is not in some way
able to meet them, because I have the highest regard for him and all
the responsibilities that he carries so cheerfully and willingly on our
behalf. I regard myself as one of the firmest supporters of the
Government, but I can put it no other way than to say that I am very
sad to find myself in this predicament this evening.

Lord Avebury: Your Lordships might be
interested to hear a story which I am about to tell of a person who had
his DNA taken when he had no criminal record. Having gone through the
immigration process at Heathrow Airport—he was a British
citizen—he was stopped by Special Branch on the land side,
taken aside, detained and made to give a sample of his DNA and
fingerprints. When I was asked to assist him in getting the samples
removed from the database, I wrote to the relevant Minister in the Home
Office and was told there was a procedure whereby one could appeal to
the relevant chief officer of police for a special review. I wrote to
the chief officer of the Metropolitan Police; I gave him the details of
what had happened and asked him to conduct a review. After a while, he
wrote back and said that he was not the chief officer concerned because
he did not deal with Special Branch cases. I therefore had to write
another letter to a different chief officer of police.

To cut a very long story short, it took 14 months for that
review to take place, during which the man concerned had, as noble
Lords have said, a stigma hanging over him because his samples were
taken on the database. People would say, “Well, surely he
must have been guilty of something if they felt so certain that the DNA
was required to be kept in this way”. I subsequently
discovered that only three people had been successful in making a
special appeal and getting DNA samples removed from the database.
Everything that has been said about the violation of our human rights
and the ignoring of the European Court is reinforced by what one knows
about these cases.

I sincerely hope that the Minister will pay close attention
to the amendment and, if not agree to it, at least guarantee that we
will take steps to bring ourselves into conformity with our commitment
to European human rights legislation.

Baroness Neville-Jones: My Lords, the
retention, destruction and use of DNA samples have been the subject of
much debate over several years. The controversy has centred on the
indefinite retention of the DNA profiles of those who have committed no
crime or who have been cleared of allegations against them, which has
been found to be illegal. We on these Benches, with others, have
successfully pushed the Government to end the permanent retention of
innocent people’s DNA. Hence we now have these government
proposals in the Bill.

I said at Second Reading that we still preferred the Scottish
model, under which the state would retain for a limited period of three
to five years the DNA profiles of those not convicted of an offence
only in circumstances where charges relating to a crime of violence or
of a sexual nature had been brought. The Home Secretary says that the
police in Scotland do not think that their model works well; the
Minister said the same thing when we last debated this matter. However,
this is not borne out by the evidence, which shows that the Scottish
system has a higher detection rate than that in England and Wales.
Moreover, Labour Members of Parliament supported the Criminal Procedure
(Scotland) Act 1995 which put that system in place. I therefore beg
leave to take issue with those who claim, as the Home Secretary has
done, that to take the Scottish system seriously is not to take the
issue seriously.

The problem is that we are out of time for proper discussion,
so we have to look at the essentials. First, we now have cross-party
acceptance of the principle that the indefinite detention of the DNA
profiles of those who are innocent is wrong and ineffective. We need to
get this principle into law. It is also a requirement of the
ECHR’s judgment, which we agree with and respect. Secondly,
the legislation offers some control over one of the other most
obnoxious features of current system, which is the postcode lottery
involved in getting off the database the profiles of those who should
not be on it.

At this late stage, the Liberal Democrat Benches have put
forward an amendment which in some respects travels back from the
rather uncompromising position that they have taken hitherto. Sadly, it
is too late for proper discussion. Were we able to have that, there
would be a number of changes that we would want to try to make. The
amendment fails for instance to provide for getting on to the database
the profiles of those who have been convicted of criminal offences but
who have never been put on it. There are a significant number of people
who should now be on that database, if we regard the database as being
a way of usefully detecting crime.

The
position of my party is absolutely clear. We do not resile
from the view that the entire system needs to be overhauled, not
piecemeal but systematically. A Conservative Government if in office
will do the following: they will legislate in the first Session to make
sure that the DNA database includes permanent records only of people
who have been convicted of an offence and, for a more limited period,
those charged with sexual or violent offences. Secondly, we will focus
efforts on collecting the DNA of all existing prisoners, those on
probation, on licence or in prison or under the supervision of the
criminal justice system, which the Government have failed to do.
Thirdly, we will introduce new guidelines so that those wrongly accused
of minor crimes and who have volunteered their sample have an automatic
right to have their DNA removed from the database—one thing
that this House most strongly objects to. It is not about one party
being soft on crime and one party being tough on crime, as the Home
Secretary said; that is absolute nonsense. We all agree that DNA is an
important and useful tool. The issue is one of creating a DNA database
that works and that has public trust, given that detections have fallen
although the number of profiles has ballooned. This is a point that
should not be missed. In fact, the prison system is not working very
well because, although we have increased numbers put on it, the actual
number of detections is falling.

Systematic reform is needed and a new approach focused on the
guilty and on those who pose most risk. This is a fundamental root and
branch change that we will not achieve today but which must be achieved
by a new Government. For now, we take the view that it is important
that we have in law acceptance of the proposition that the indefinite
retention of innocent people’s DNA is unacceptable and
illegal.

Lord West of Spithead: My Lords, I
certainly did not understand wash-up before, and I am still not sure
that I do understand it. However, it seems to me to be an agreement
between the main parties about finding a way ahead, so I was rather
taken aback by the noble Baroness, Lady Neville-Jones, listing a great
long list of proposals for what is intended to be done. My
understanding was that it was only because of an agreement that this
has come through—but clearly I have been taken flat aback on
that one and do not understand what is going on. But that was my
understanding of it.

In any event, as has been said, the proposed amendments would
replace our proposal with a variant of the Scottish retention model. It
was discussed, of course, in the other place, where it was pressed to a
Division and defeated by some 79 votes. As the Committee will be aware,
Scotland has a very different approach to the retention of fingerprints
and DNA from the one that the Bill proposes. The Scottish model is that
DNA samples and resulting profiles must be destroyed if the individual
is not convicted or granted an absolute discharge, and DNA may be
retained for those not convicted only if they are suspected of certain
sexual or violent offences, when it may be retained for three years.
That can be extended at perhaps two years at a time with the approval
of a sheriff. While there was some support for the Scottish retention
model during the Bill’s earlier stages in the other place, it
should be noted that the Scottish Executive, as with so many other
things that the Scottish Executive do, arrived at their model with no
research whatever. It was just plucked out of the air. The model also
has significant operational limitations. As the noble Baroness, Lady
Neville-Jones, says, it is not just the Government’s view
that the Scottish model poses problems for the police; the Scottish
Association of Chief Police Officers said in February 2008:

“Our position is that we should move into line,
after discussion with Scottish Government, with England and Wales and
DNA samples should be taken and retained under strict guidelines from
offenders. We are in favour of mirroring any legislation in the UK
Parliament allowing the taking and retention of DNA samples from
persons arrested for an offence”.

It is interesting to note the talk about higher detection
rates in the Scottish example. That is not the case. The Scottish DNA
database does not have a higher success rate. The figures quoted on one
occasion look at 2005–06 figures and do not compare like with
like. The latest like-for-like data, from 2008–09, show that
the England and Wales database has a 13 per cent higher success rate
than Scotland, so the Scottish Association of Chief Police Officers is
correct and our system is somewhat better.

More significantly, consideration also needs to be given to
the underlying principal question in this amendment of whether the
biometric data of those not convicted of an offence should be treated
differently depending on the nature of the offence under investigation.
Potentially, that could create different levels of innocence, depending
on what it is that someone has not done. We propose a single retention
period regardless of the seriousness of the offence for which a person
has been arrested. The best available evidence indicates that the type
of offence for which they are first arrested is not a good indicator of
the seriousness of the offence that he or she might subsequently
commit. The Scottish model, proposed in the amendment, therefore risks
missing many detections of serious offences due to the nature of the
offence originally under investigation. For example, in
2008–09 alone, there were at least 79 rape, murder or
manslaughter cases in England and Wales that were matched to the DNA
database from DNA profiles that belong to individuals who had been
arrested but not convicted of any crime. Of that number, in 36 cases
the matches were found to have had a direct and specific value to the
investigation. If we had applied the Scottish retention regime and
retained DNA profiles only from those arrested but not convicted of a
serious crime, at least 23 victims of the most serious crimes, and of
course their families, could have been denied justice last year alone.

In the light of the above, and as the retention of DNA is not
punitive but a measure to facilitate the detection of future offences,
we believe that a single retention period is the correct way forward.
Indeed, on the point of it not being punitive, a number of speakers
have talked about being on the database as being a stigma. I believe
that it is a stigma only if people know that someone is on the
database. I personally have no concern about being on it. Almost nobody
knows that someone is on the database. It is a stigma only if someone
knows that you are there.

On the Motions that Clauses 14 to 23 should not stand part of
the Bill, I point out that if these Motions were carried we could be no
further forward than we were at the beginning of last year. We would
still be in breach of the European Court’s ruling, as a
number of noble Lords have said, and we would not have a legislative
framework for the retention of DNA profiles and fingerprints. We
consider that our DNA retention proposals represent an appropriate
balance between public protection and protecting individuals’
rights and liberties, based on the best available research. We also
believe that it will meet ECHR requirements and the ECHR judgment.
While some have criticised elements of our research evidence, I remind
your Lordships of the key points that the evidence points us to. We can
justify retaining the DNA of people who have been arrested but not
convicted while the risk of offending is higher than that of the
general population. Our analysis suggests that that risk, as measured
by the risk of rearrest, is higher than the general population for six
years following the first arrest. While arrest is only a proxy
indicator of the risk of offending, the nature and volume of data
currently available to us mean that a more precise arrest/conviction
analysis is likely to be less reliable. Yes, we can do more work, but
at least we have done some analysis, unlike under the Scottish system.
The precise length of time to equalise the risk may vary in either
direction due to the uncertainties in the analysis and data. On
balance, these uncertainties are more likely to extend the time that it
takes for these risks to be equal, which would argue in fact for a
longer retention period. But we must do analysis and look at this in
much more detail.

The noble Earl, Lord Onslow, referred to samples being taken
from volunteers. Those samples can and must be removed from the
database on request, and DNA from a volunteer is put on the database
only in very exceptional circumstances, at the explicit request of the
volunteer.

Ultimately, the evidence can only go so far to answering the
question of what is an appropriate retention period. When there are
statistical uncertainties around the estimate, the final decision must
be one based on judgment—it is not precise yet—and
not evidence alone. But we are trying to build up more evidence to get
a better database. That is how we arrived at a retention period of six
years, the point at which our research tells us that the risk of
rearrest returns to the risk of arrest in the general population. We
consider that our proposals are a cogent and considered package and
represent a huge change from the situation as it stands, as was touched
on by the noble Baroness, Lady Neville-Jones, taking us from a blanket
indefinite retention, whereby innocent and guilty are treated alike,
and whereby DNA profiles are kept as long as DNA profiles—two
finite periods based on research and differentiating between different
categories of individual. We further believe that the safeguards
outlined in Clause 23 relating to the national DNA database strategy
board provide sufficient scrutiny and oversight of the process and will
result in clear and consistent guidance being issued in future on the
destruction and deletion of profiles. A number of speakers touched on
that point.

I am particularly disappointed that, after all the consensual
work done in the other place to put into place a new role for the
strategy board, noble Lords wish to remove Clause 23. I also put on
record my gratitude to the official Opposition for agreeing, as part of
the wash-up, that our proposed retention framework should be put on the
statute book. That agreement means that we can bring an end to the
somewhat protracted process of responding to the judgment of the
European Court, giving some certainty to both the police service and
the public at large that biometric data will be held under a specific
and detailed statutory regime. On that basis, I ask that Amendment 2 be
withdrawn and that Clauses 14 and 23 should stand part of the Bill.

Baroness Hamwee: My
Lords, I am very grateful to those noble Lords who have supported my
amendment and my opposition to certain provisions in the Bill. I hope
that they will forgive me if, in the interests of time, I do not go
through all the points that they made. The Minister said that he still
does not understand wash-up; he had thought that only what was agreed
went forward. He said that after listening to the noble Baroness, who
seemed to be opposing the Government’s proposals. All I would
say is: indeed.

On having no research of the Scottish
model, the Home Office research, by all accounts, seems to have
been—what can I say?—a bit dodgy. It is certainly
not as substantial or as useful as those looking for a solution to all
of this would want to find. I understand, of course, that the police
want the most extensive tools possible. The Minister talked of
detection rates; my response is that the Home Affairs Select Committee,
in one of its conclusions to the report that it published only
recently, on 8 March, said:

“It is
currently impossible to say with certainty how many crimes are
detected, let alone how many result in convictions, due at least in
part to the matching of crime scene DNA to a personal profile already
on the database, but it appears that it may be as little as
0.3%”.

It went on that,

“we
note that the reason for retaining personal profiles on a database is
so that the person can be linked to crimes he/she commits
later”.

Yes, the Government are proposing a single
retention period—but one which is too long.

The noble Lord gave examples of where DNA
has been used to solve crimes. We all know about hard cases and bad
law. As I have said, the general view is that there is a poor evidence
base for what is proposed. He said that if the clauses do not stand
part of the Bill, we will be no further forward in responding to the
European court. Indeed, that is absolutely my point; it would then be
necessary to reconsider the matter.

For the Conservatives, the noble Baroness
says that we are out of time for proper discussion, that it is too late
for that and, in effect, that the amendment—she did not use
this word—is inadequate. I thought that I could have done no
better than using the Conservatives’ own amendment. If it is
inadequate—in my view it would be a compromise, but one which
I hoped would take the noble Baroness and her troops with
us—better to start from the inadequate than the bad. The
Conservatives, if they do not support these Benches on these
amendments, must accept responsibility along with the Government for
the bad. I wish to test the opinion of the House.

Update:
On April 8th at 5:22pm, Mr Speaker announced that the House has been to the House of Peers where a Commission under the Great Seal was read, authorising the Royal Assent to twenty Acts including the Crime and Security Act 2010.

- a new DNA retention regime to hold the DNA profiles of convicted offenders indefinitely and keep the DNA profiles of those who are arrested but not convicted of a recordable offence for a fixed amount of time;

- powers for police to retrospectively take DNA samples from violent and sexual offenders returning to the UK following conviction overseas, and to collect DNA from such convicted offenders who are no longer in prison;

- a mandatory parenting needs assessment when young people aged ten to 15 are being considered for an antisocial behaviour order (ASBO) and parenting orders where they have breached their ASBOs;

- powers for police and local authorities to apply to a county court for an injunction against young people over 14 to prevent gang related violence, for example prevent a gang member from meeting other named gang members or going into a particular 'territory';

- domestic violence protection orders requiring an alleged domestic violence perpetrator to leave the home for a fixed period of time;

- a licensing scheme for wheel clamping companies and an independent appeals process for motorists who feel they have been wrongly clamped;

- financial compensation for British citizens who have been injured or bereaved by a terrorist attack overseas;

- powers for licensing authorities to make an order restricting the sale or supply of alcohol between the hours of 3am and 6am;

- reduced amounts of information that police must collect when stopping and searching an individual;

- powers for police to search individuals subject to control orders and to seize items of concern where appropriate;

- a new offence of possession of an unauthorised mobile phone or other electronic communications device in prison; and

- a new offence of failing to prevent minors from having access to air weapons.